Zhao Ying v. Chow Lai Ching and Others

HCMP53/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 53 OF 2009

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J U D G M E N T

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1.The present proceedings have been brought by the infant, Zhao Ying, by his mother and next friend, Madam Wu Meimei, for an order that the infant is entitled to succession under the Intestates’ Estate Ordinance in the estate of Chiu Pang, deceased (“the deceased”), which is being administered by the 1^st and 2^nd defendants under Grant No. HCAG009127/2008. The deceased died intestate on 30 August 2008. The question raised in the proceedings is whether the infant is the natural son of the deceased. If so, he would be entitled to inherit a portion of the estate of the deceased under the provisions of the Intestates’ Estate Ordinance.

2.The 1^st defendant is the lawful widow of the deceased.  The widow and the deceased had two sons, both in their teenage years at the time of the death of the deceased on 30 August 2008. Madam Wu’s case is that Chiu Pang had an extra-marital relationship with her and that the plaintiff was born out of such relationship in Beijing on 7 June 2006.  The 1^st defendant and the 2^nd defendant, who is the younger brother of the 1^st defendant, are the co-administrators of the estate of the deceased.  They do not accept that the infant plaintiff is a natural son of the deceased and they require Madam Wu to prove her claim that he is. 

3.The matter has come before me previously.  On 22 July 2010, I gave a direction of my own motion, under section 13(1) of the Parent and Child Ordinance, that scientific tests be conducted to determine the parentage of the infant plaintiff. I had joined previously the elder son of the marriage, Chiu Pang, as the 3^rd defendant in the proceedings.  He was already an adult by then.  Notwithstanding his opposition, I gave a direction that bodily samples be taken from the infant, from Madam Wu, and from the 3^rd defendant, and that scientific tests be conducted on such bodily samples for the purpose of ascertaining whether the infant and the 3^rd defendant are or are not half brothers.  As the court cannot compel such bodily samples to be taken, I also directed that no bodily samples were to be taken from the 3^rd defendant without his consent and that no bodily samples were to be taken from the infant and from his mother, Madam Wu, without her consent.  I was subsequently informed that the 3^rd defendant refused to consent to bodily samples being taken from him for the purposes of such test. Madam Wu had all along requested and consented to DNA testing.  I did not, therefore, have the benefit of such tests when the matter resumed before me on 29 November 2010. 

4.Miss Vanessa Kwok appeared for the plaintiff at the resumed hearing in lieu of Mr Alfred Fung who had previously appeared for the plaintiff but who was occupied elsewhere.  As before, Mr C.Y. Li appeared for the 1^st and 2^nd defendants.  He did not call the 1^st defendant to give evidence and he did not adduce into evidence the affirmations made by her previously in these proceedings.  Although I dispensed with the need for the 3^rd defendant to appear at the resumed hearing, if he had wanted to, he could have participated in these proceedings and called evidence to oppose the plaintiff’s application.  If the plaintiff succeeded in establishing that he is the natural son of the deceased, the interests of the 3^rd defendant and of his younger brother in the estate of the deceased would be adversely affected, not the interests of the 1^st defendant who, as the lawful wife and widow of the deceased, would still receive, pursuant to section 4 of the Intestates’ Estate Ordinance, the net sum of $500,000 and one half of the estate, the other half of the estate going to the issue of the deceased.

5.It was accepted that the infant plaintiff would be entitled to a share of the estate of the deceased if he is the natural son of the deceased and that it did not matter that he is illegitimate. 

6.The only evidence that was adduced before me came from Madam Wu, who adduced photographs and video recordings of the deceased with her son.  She also produced a birth certificate of her son and a medical consent form to undergo a caesarean section which had been signed by the deceased.  She gave evidence confirming the truth of the contents of the affirmations she had made in these proceedings.  She was cross-examined extensively by Mr C.Y. Li.

7.Mr C.Y. Li submitted that the question raised by the issue of paternity is a serious one and the balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue, citing the judgment of Waite LJ in re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463 who said :

“(1) the question raised by the issue of paternity is a serious one – more serious in the scale of gravity than, for example, proof of debt or minor negligence;

(2) the balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue;

(3)  the weighing process involved in (2) must not however be over-elaborate.  The court should not attempt, in a precise, almost mathematical, way to determine precisely what degree of probability is appropriate to the gravity of the case.  There is still ample scope for the influence of common sense and the insight gained from first impression.”

8.Mr Li also submitted that in the absence of determinative scientific evidence, the issue was to be approached from a common sense point of view having regard to the evidence available and in the light of the relevant circumstances. 

9.Miss Vanessa Kwok for the plaintiff did not disagree with these submissions.  She accepted that the burden was on the plaintiff to prove on a balance of probabilities that the infant is the child of the deceased, and that I had to be satisfied to a degree of sureness which matched the seriousness of that issue.

10.I agree with these submissions and I proceed to consider and assess the evidence accordingly.

11.Madam Wu gave evidence asserting that she is the natural mother of the infant plaintiff and that the deceased was his father.  She had met the deceased in Beijing in 2002 through the introduction of friends.  They got along very well, both having a keen interest in classical music.  Chiu Pang had been a viola player in the Philharmonic Orchestra of China.  She had also worked in the field of music, albeit with another organization.  She had learned from him that, after leaving the Philharmonic Orchestra of China, he became engaged in the business of chemicals and had to travel to Beijing often for such business.  They became romantically involved soon after they met.  Although he was married, with family, in Hong Kong, they lived as husband and wife in Beijing.  The parents of the deceased had also been living in Beijing but the deceased would stay at her place whenever he came for visits.  On average, he would be with her for about 1 week in a month.  Sometimes they saw each other more often.  The duration of his visits were never fixed.  The deceased was full of joy when he learned of her pregnancy in 2005.  Even before the infant was born, the deceased would bring over from Hong Kong baby products for his future use.  He would fly in from Hong Kong just to accompany Madam Wu during her antenatal visits to the doctor.  She asserted that he did not miss a single one of those visits. 

12.Since her pregnancy, the deceased had provided her with RMB10,000 per month in cash for family expenses and support. 

13.The deceased stayed at her bedside at the hospital from 5:30 am until the time the infant was born at 12:17 pm on 7 June 2006.  He continued to stay with her and with his infant son until 4 am the next morning. 

14.Madam Wu produced a consent form to undergo a caesarean section dated 7 June 2006 which was signed by the deceased and also signed by the attending physician, Lei Xiao Hui.  She explained that in the course of her labour, the situation became critical so much so that she needed an emergency caesarean section.  As her condition was particularly critical, she could not sign the consent form.  At that time, the deceased told Dr Lei that he was the father of the child and that he would sign the form.  She did not know why the deceased signed his name on the form on the space reserved for the signature of the patient rather than on the space reserved for the signature of the next of kin. 

15.It is not dispute that the signature on the form is the signature of the deceased. 

16.After his birth and after they returned home, the deceased helped in taking care of the infant, including feeding and bathing him, and changing his diapers.  When the infant was older, the deceased would himself prepare different varieties of infant foods for the infant.  Every time he came from Hong Kong, he would bring along food, clothing and toys for the infant.  He would also mail packages for the infant from Hong Kong.  When the deceased was alive, he would call them and talk to her and to the infant every day.  

17.Madam Wu produced the birth certificate of the infant issued by the Beijing United Family Hospital on 16 June 2006 and bearing the seal of the Ministry of Health of the People’s Republic of China.  The birth certificate gives the time and date of the birth of the infant.  On the certificate is recorded the name of Madam Wu as the mother of the infant and the name of the deceased as the father of the infant.  The name of the father is recorded as “Chiu Pang”. His age is stated to be 47.  His nationality is stated to be British and his identification card number is specified as “9427879” which, in fact, is a part of the number shown on his re-entry permit (at p.43 of the Trial Bundle) which bears the number H0942787900.

18.In addition to the birth certificate, Madam Wu also produced certain photographs taken of the infant with the deceased.  The photographs also show the dates on which they were taken.  They appear at pp.38‑41 of the Trial Bundle. 

19.The 1^st photograph was taken on 16 June 2006, some days after the infant was born, and shows the deceased lying bare-chested on a sofa with his head propped up against a pillow and with the infant lying on what appears to be a pillow case or a quilt cover placed on the chest of the deceased.  The 2^nd photograph taken on 20 June 2006 shows the deceased carrying the infant in his arms and Madam Wu beside the two of them.  The 3^rd photograph, taken some nine months later on 5 March 2007, shows a slightly older baby lying on a bed and touching the face of the deceased.  The next photograph, taken on 22 March 2007, shows the infant walking on a stroller and looking backwards towards the deceased.  All these photographs were taken at the residence of Madam Wu in Beijing as was the next photograph, taken on the 1^st anniversary of the birth of the infant on 7 June 2007.  This shows Madam Wu holding the one-year old infant in her arms, with the deceased next to her posing for the camera and with a birthday cake with a lit candle in front of them. 

20.The next few photographs were taken in a park in Beijing.  The photograph on the bottom of p.40 was taken on 14 September 2006.  It shows the deceased carrying the infant in a sling pouch which was attached to the front of the deceased.  The photograph also shows Madam Wu standing close to the infant facing the deceased with her hand on the infant’s left arm.  The last two photographs in the series were taken later, on 16 April 2008 and 17 April 2008.  They show the deceased carrying the infant on his shoulder in one of them and the deceased sitting with the infant on a swing in the park in the other.  I can see a resemblance in the facial features of the infant and of the deceased in the photograph showing the deceased with the infant perched on his shoulders. 

21.Mr C.Y. Li for the 1^st and 2^nd defendants readily conceded that the birth certificate was “strong” evidence establishing that the infant was the child of the deceased, albeit that there was no verification of blood relationship before the name of the father was inserted.  He also conceded that the photographs were “strong” evidence establishing that the infant was the child of the deceased. Even more compelling evidence comes in the form of two CD-ROMs which were adduced into evidence.  Madam Wu gave evidence that she had taken video recordings of the infant with the deceased, and that most of the video recordings on the two CD-ROMs had been made by her.  The recordings were made from the 2^nd day the child was born.  The recordings were made using the same camera and were made on various occasions, with the last recording being made around April 2008.  She removed the memory card from the camera which she took to a specialist shop.  There, the data on the memory card was transferred to the two CD-ROMs which were adduced into evidence.  

22.The parties have supplied to me a summary of what can be seen and heard from the video recordings.  There is no dispute that the videos show Madam Wu, the infant and the deceased. An elderly lady is also shown on the video.  The plaintiff’s case is that she is the maternal grandmother of the infant.  Although the 1^st and 2^nd defendants do not admit this, nothing turns on her identity.  The 1^st video runs for 38 minutes and 37 seconds, and the 2^nd video runs for 44 minutes and 23 seconds.  Different scenes are depicted in that period of time.  Each separate scene is identified on the summaries by the time on which it is shown on the video so that, for example, the 1^st scene of the deceased carrying the infant is described in the 1^st column of the summary as running from 00:00 to 03:04, and the last scene of the 1^st disc is described in the 1^st column as running from 37:26 to 38:37.  The 2^nd column of the summary describes the images being depicted, for example, the 1^st scene is described as showing the deceased carrying the infant, and the 2^nd scene is described as showing Madam Wu breast feeding the infant.  These are agreed descriptions, save for that part of the descriptions which appear in red ink and in respect of which of which there is no agreement.  I do not read the descriptions appearing in red ink as being of any particular assistance to me and I therefore place no reliance on them.  The 3^rd column of the summary sets out the dialogue that can be heard in the different scenes.  This is agreed between the parties, save for one or two instances when the dialogue is recorded in red ink and which is not admitted by the 1^st and 2^nd defendants.  Again, I form the view that the dialogue recorded in red ink is not particularly relevant, nor of assistance to me, and therefore I do not place any reliance on it.  In conclusion, I can say that I have received the video recordings into evidence, that I have viewed them carefully, and that I have relied on the summaries, to the extent that I have set out above, to enhance my understanding of what is shown on the videos.

23.The 1^st scene, which was filmed on the 2^nd day after the infant was born, shows the deceased seated on a sofa and holding the newborn baby on his lap.  In another scene, he is shown standing up and cradling the infant in his arms.  In a 3^rd scene, he is seated again on a sofa with the infant cradled in his arms and he is seen tickling the chin of the infant. Although Madam Wu is not shown in the scene, there is a recording of her saying “when he cries, it’s very loud.  He looks ugly.  He looks like his Dad”.  That is a contemporaneous statement by Madam Wu, in the presence of the deceased, that the deceased is the father of the infant he is carrying. There is no protest, nor any disagreement, by the deceased to being called the father of the child. In that scene, the deceased is shown wearing a white striped T-shirt and the infant is shown to be wrapped around by a green blanket or coverlet.  The next scene shows the infant, wrapped around by the same green blanket, being breast-fed by Madam Wu.  Judging by the next scene that follows, which shows the deceased wearing the same T-shirt carrying the infant, now wrapped up in a white blanket or coverlet, I conclude that all three scenes were taken on the same day, as was the following scene showing the deceased carrying the infant in his arms and enjoying a candle-lit dinner.  Madam Wu is heard in that scene as saying that they are enjoying a candle-lit dinner at the hospital and that they are celebrating the baby’s birthday.  Another person is heard to say that the baby is 56 hours old.  Having viewed these scenes, I conclude that they were all taken on the 2^nd day after the plaintiff was born, and that the deceased was either filming the infant being breast-fed by Madam Wu, or present during the filming of that scene.  That Madam Wu allowed him to film that scene, or to be present when she was breast-feeding her child, is very compelling evidence that he was the father of the child.  The statement of the deceased during the candle-lit dinner that the infant “likes to eat, just like me”, is equally consistent with the assertion, and compelling evidence, that the deceased was the father of the infant.

24.The recording of the candle-lit dinner shows the deceased holding the infant in his arms and pretending to make him drink some wine.  On seeing this, Madam Wu is provoked to accuse the deceased of being a “naughty daddy”.  The action of the deceased and the spontaneous reaction by Madam Wu is also compelling evidence that the deceased was the father of the infant.

25.It was never suggested to Madam Wu that some other person was the father of the infant and that she had deceived or tricked the deceased into believing that he was the father of the infant.  Mr C.Y. Li very fairly conceded that the 1^st and 2^nd defendants had no positive evidence to that effect and, therefore, could not advance a case that the deceased was deceived or tricked into believing that he was the father of the infant. 

26.The other scenes in the first DVD were taken at a time when the infant was said to be five days old and, on another occasion, when the infant was said to be almost one month old. These scenes show the deceased stroking the infant’s back, touching and playing with the infant.  More compelling evidence that the deceased is the father of the infant comes from the scene showing the deceased giving a bath to the baby.  The deceased is himself bare-chested and only wearing a pair of shorts when he is doing so.  Madam Wu is heard telling him to wash the baby’s face and telling the deceased that there is no need to wash his hair today, but the deceased disagrees with her, and then proceeds to wash the baby’s hair.  The scene is consistent with the assertion that the deceased is the infant’s father.  It is difficult to think of a mother allowing a man, who is not the father of her child, to give a bath to her baby, as the deceased is shown to be doing in this particular scene, unless that man was the baby’s grandfather or, possibly, the baby’s uncle, which clearly the deceased was not.

27.The scene following the bathing scene shows the deceased seated on a sofa, wearing only a pair of shorts, as he is cradling and holding the infant and playing with him and talking to him.  This scene is also consistent with the assertion that the deceased was the father of the infant. 

28.The 1^st scene of the 2^nd CD-ROM shows the deceased, again dressed only in shorts, playing with the infant and giving him a back massage.  During the scene, Madam Wu is heard to say “Dad is massaging the baby” and “Dad is giving the baby a massage”.  The deceased does not protest or disagree with these statements.  The scene is wholly consistent with and supportive of the assertion that the deceased was the father of the infant.  Another important scene shown on the 2^nd CD-ROM is the celebration of the infant’s 1^st birthday at his home, with Madam Wu and the deceased singing “Happy Birthday” to him.  The presence of the deceased at the infant’s 1^st birthday is again strong evidence supportive of the assertion that he was the infant’s father. Another important scene on the 2^nd CD-ROM shows the deceased once again giving the infant a bath.  As on the previous occasion, the deceased is only dressed in shorts.  On this occasion, Madam Wu is recorded as saying that the baby is almost one year old.  Again, this scene is strongly supportive of the assertion that the deceased was the father of the infant.  Other scenes in the 2^nd CD-ROM show the deceased playing with the infant at home, the deceased taking the infant to the park, and the deceased watching television with the infant at home.

29.It is true that the deceased had not described himself as the father of the baby, in these video recordings, but he did not deny that he was the father of the child when Madam Wu referred to him as such.

30.The deceased died suddenly of a heart attack at the age of 50 on 30 August 2008.  After his death, Madam Wu went to visit the parents of the deceased in Beijing, together with the infant, on 18 September 2008.  She was met by the sister of the deceased, Madam Zhao Lei.  Madam Wu told the deceased’s sister that the infant was the child of the deceased and that she wished to obtain a blood sample from the father of the deceased for paternity testing so that the infant’s registration of his residence in Beijing could be effected.  She also told the sister of the deceased that she was not asking for money as she and her mother had the ability to look after the infant.  Madam Zhao Lei, however, did not let them enter their residence and prohibited them from seeing the parents of the deceased. 

31.It was common ground that the 1^st and 2^nd defendants did not know of any relationship the deceased had with Madam Wu.  Madam Wu was neither surprised, nor did she consider it to be unusual, that the deceased had not told his wife and family in Hong Kong that he had been involved in an extra-marital relationship with her leading to the birth of the infant.  In these circumstances, Mr C.Y. Li submitted that it was not to be expected that the 1^st and 2^nd defendants would have in their possession any evidence to negate or rebut the plaintiff’s case, and that, therefore, it was understandable that the 1^st defendant had chosen not to give evidence and had proceeded on the basis of putting Madam Wu to proof of her claim.  That may well be so; however, in the absence of evidence to the contrary, I would require cogent reasons to reject the evidence presented to me by Madam Wu.  Mr C.Y. Li attempted to supply those cogent reasons by reference to the evidence of Madam Wu elicited in the course of her cross-examination. 

32.I do not agree with Mr Li that the fact that the deceased signed the medical consent form on the space reserved for the signature of the patient, as opposed to signing on the space reserved for the signature of the next of kin, takes away from the strong inference to be drawn from his signature appearing on this document.  He was clearly placing his signature on it, and doing so on behalf of Madam Wu, to signify her consent to undergo a caesarean section.  The fact that he was present during the birth, and signed the consent form on behalf of Madam Wu, strongly suggested that he was the father of the infant to be born. 

33.The criticism that Madam Wu’s three affirmations were extremely, and purposely, short, and that this was done for tactical reasons, does not hold water.  Unless there is a deliberate omission of material facts, which is not the case here, brevity is to be applauded.  The omission to mention the fact that she was previously married to a person also surnamed “Chiu” is not, in my view, a material omission, particularly as she had divorced him, long ago, in 2001 before she had met the deceased.  She paused, and thought for a while, before answering that she had not seen her former husband since 2001.  Mr C.Y. Li suggested that Madam Wu thought about her answer in order to suit her case, as any later contact with her former husband might give rise to doubt as to the identity of the infant's true biological father.  I do not agree.  I observed Madam Wu carefully as she paused and thought about her answer and she gave me the impression that she was trying genuinely to remember the occasion when she last met her former husband before she answered the question put to her.

34.Madam Wu was rightly criticised for not setting out her residential address in the three affirmations that she filed giving, instead, the address of the place where she worked.  Madam Wu was clearly reluctant to disclose her residential address, a reluctance that is commonly shared by many litigants and witnesses in our courts.  I do not find her any less credible for failing to disclose her residential address or for describing herself as a housewife at the time when she made her affirmations when, in fact, she was in employment at that time.  She explained that she had described herself as a housewife because that was what she was during her relationship with the deceased from 2002 until the time he passed away in 2008.  The fact that she started to work after he had passed away is not material to the issue before me.  The failure to disclose that she was in employment at the time that she made her three affirmations does not, in my judgment, take away from her credit. 

35.Madam Wu’s evidence was that she and the deceased communicated by telephone and, although they both knew how to use computers to send and receive e-mail, they did not communicate by e-mail.  That does not surprise me, particularly if the deceased had wished to keep his relationship with Madam Wu a secret.  As I had mentioned earlier, the 1st defendant did not know about this relationship prior to the death of the deceased.  I accept that the plaintiff's claim could have been further supported if telephone bills showing calls being made to Hong Kong and the packages sent by the deceased to Beijing had been produced.  However, the failure to produce this further evidence does not cause me to doubt the credibility of Madam Wu.

36.A substantial part of the cross examination of Madam Wu dealt with the subject of the deceased divorcing his wife in Hong Kong in order to marry Madam Wu.  She said that she learnt that he was married and had a family in Hong Kong but she did not ask the deceased to divorce his wife.  Her own marriage had failed and she had come to the realisation that what mattered most was that two persons loved each other. He told her that he and his wife did not love each other, that Madam Wu was the only one he loved, and that what he loved most was being with her.  Madam Wu said that, after the baby was born, the deceased told her that he would divorce his wife and he asked her to give him time to deal with the divorce.  She then said that the first time the deceased mentioned divorcing his wife was in April 2008 and that, after the baby was born, he had said that he would have everything sorted out and that he would shoulder the responsibility of having the baby.  After the luncheon adjournment, on the resumption of her cross-examination, she said that the deceased spoke seriously and formally about getting a divorce and made a solemn promise to her to get a divorce in April 2008, and that, on previous occasions, he had mentioned getting a divorce but not as seriously and as formally as on this occasion.  She did not know why he spoke so formally about getting a divorce in April 2008.  He spoke seriously of wanting to spend the rest of his life with her on that occasion, and that left a deep impression on her mind.  She did not know what steps he had taken to obtain a divorce, and whether or not he had raised the matter of divorce with his wife, and she did not ascertain from him what steps he had taken.

37.I do not accept Mr C.Y. Li's submission that Madam Wu had changed her account of when the question of divorce was first raised.  She explained that whilst he had mentioned the subject in the past after the baby was born, he only spoke formally and seriously about getting a divorce in April 2008.  I do not find that it was incongruous to her account that she did not enquire what steps he had taken to obtain a divorce.  Clearly, the deceased had taken no steps to obtain a divorce.  The 1^st defendant did not even know of his relationship with Madam Wu.  It is clear to me, from Madam Wu’s evidence on this issue, which I accept, that she was not pushing the deceased to obtain a divorce from his wife in Hong Kong.  She was content that he spent time with her and the infant during his visits to Beijing, and she was content with his expressions of love for her.  The fact that the deceased did not take any steps to obtain a divorce does not detract from the evidence of Madam Wu that he was the father of the infant.

38.It was important that the infant be registered as a resident of Beijing.  After the death of the deceased, she went to the residents of the parents of the deceased to obtain blood samples from them for paternity testing so as to enable the infant to be registered as a resident of Beijing.  It would appear that the birth certificate was insufficient for this purpose and that the deceased had not secured the registration of the infant as a resident of Beijing in the two years since the birth of the infant up to the time of his death in August 2008.  Madam Wu said in evidence that, two or three months after the infant was born, the deceased looked for his friends to try to find a way to secure household registration for the infant.  It was not in dispute that such registration was important for the infant's future benefit and welfare.  The difficulty of securing such registration for the infant arose from the fact that the deceased already had two children and from the fact that the infant was illegitimate.  Madam Wu had made enquiries and was told that a penalty would have to be imposed as the infant was the third child of the deceased.  The difficulty of securing a household registration was known to the deceased and he had suggested to Madam Wu that she should give birth to the infant in Hong Kong.  However, Madam Wu was not willing to do so.  The problem of securing a household registration for the infant had since been solved, but was a continuing problem up to the time of the death of the deceased.  Madam Wu said that, prior to his death, it did not cross her mind to obtain a blood sample from the deceased to resolve the problem of household registration.

39.It is clear that the deceased failed to secure household registration for the infant in the two years that have passed since he was born.  Neither did the deceased make any financial arrangements for the infant.  As against that, we also know that the deceased had not made a will. He died suddenly at the age of 50 at the prime of his life.  In the absence of any evidence that the deceased knew or suspected that his days were numbered, I do not accept that the failure of the deceased to do more for the infant than he did detracts from the evidence of Madam Wu that he was the father of the infant.

40.I found Madam Wu to be a frank and forthcoming witness.  She shed genuine tears at the beginning of her evidence when she had to look at and describe the photographs showing the deceased. She was not evasive and answered all questions put to her to the best of her ability.  Her testimony is wholly supported by the incontrovertible evidence provided by the photographs and the video recordings.  It is also supported by the birth certificate and by the medical consent form signed by the deceased. Whilst it is true that the birth certificate is evidence from which one can infer that the deceased was willing to put his name forward as the father of the child, there is no evidence before me to explain why he would be willing to do so if he were not the father of the child.  I find Madam Wu to be a truthful witness and I accept her evidence.

41.Having considered the totality of the evidence and the evidence of the photographs and the video recordings, which I would describe as overwhelming, I have no hesitation in concluding that I am satisfied to the degree of sureness which matches the seriousness of the issue before me that the infant is the natural son of the deceased.  I have carefully considered the evidence of Madam Wu elicited under cross examination and the submissions made to me by Mr C.Y. Li.  I am not persuaded by the matters raised that I should find otherwise.

42.In the light of these findings, it is not necessary for me to go on to consider whether or not I ought to draw an adverse inference from the 3^rd defendant's refusal to permit bodily samples to be taken for DNA testing, and whether any such adverse inference could be relied upon to support the claims being made against the 1^st and 2^nd defendants.  The submissions I received from the parties in this connection are worthy of detailed consideration and discussion. Mr C.Y. Li submitted that I should not draw an adverse inference against the 3^rd defendant who did not know the truth of the matter.  As he did not know the truth, one could not infer, from his refusal to permit bodily samples to be taken, that he had something to hide.  Miss Vanessa Kwok for the plaintiff countered this by submitting that the inference ought not to be so narrowly drawn, only against persons who knew the true situation, and that the inference ought also to be drawn against persons who prevented the truth from coming out.  The resolution of these matters is best left to another court in a case where their resolution would be determinative of the proceedings.

43.I grant the plaintiff the declaration sought in the originating summons that the plaintiff, being the natural son of Chiu Pang, deceased, is entitled to succession under the Interstates Estates Ordinance with respect to the estate of Chiu Pang, administered under Grant No. HACG009127/2008.  

44.It is not in dispute, that if I found in favour of the plaintiff, that the costs of the plaintiff, of the 1^st and 2^nd defendants, and of the 3^rd defendant, should be paid out of the estate and I so order.

Ms Vanessa Kwok, instructed by LCP, for the 1^st Plaintiff

Mr C.Y.Li, instructed by Messrs Fairbairn Catley Low & Kong, for the 1^st & 2^nd Defendants

Messrs Yu, Chan & Yeung, for the 3^rd Defendant (Absent)